Saturday, January 31, 2009

Libel and the Truth Defense

Over coffee and scrambled eggs this morning, Bill looks up from the Guardian and says in an uncharacterstically disdainful voice:

"Your blogosphere is all funny man"

"Its not mine. What did they do now?"

"I was reading some blogs yesterday"

"I thought you read all of 4 blogs"

"There were these links..."

"Right"

"Anyway the point is these bloggers are funny"

"Why?"

"They have taken up some cause now. The cause of free speech!"

"I noticed"

"And you don't find it funny?"

I do. Not surprising but funny. Other than a handful of blogs (most of which Abi links to here, my views are similar to the ones expressed in this post), I have no idea what the rest of them are all protesting. Righteous indignation as usual. It seems like oh, lets all get together and rant against the mainstream media, this is so much fun, isn't it? Not that I have anything against ranting or having a bit of fun; I am sure I'd even agree to join the party if only I could see anything more than Bloggers of the world, Unite but I guess I am a little dim that way. Anyway, that's not the point of this post.

Getting back to story. So Bill and I were talking about this and we got to libel defenses.

"Which country was this where truth was not an absolute defense in a defamation case?"

"I don't think there's any country like that; not any democratic one. India could fall into the category if you interpret the law a certain way but not sure"

"Not India. Indian laws are strange. There is some country, there definitely was. Maybe old British libel law. I remember studying about this in Civics"

"You studied old British law in your Civics class? Dude, you didn't even study in Calcutta. What did your parents do to you? Get you WB history books to rectify gaps in your education?"

"Oh shut up. We studied about all sorts of countries in Civics"

"Yeah and their old laws. Anyway, I don't think there is any country where truth is not an absolute defense"

"There is"

Google and Wikipedia time. I lost the bet. The country is Philippines. In the Philippines, truth is only part of the defense - in addition to showing the statements were true, the defendant will have to prove that matter charged as libelious was made with good motives and justifiable ends. (from here)

More time was duly spent on this (xkcd would approve) and now that I know so much about libel laws (especially media libel laws) in different countries, I have decided it's my duty to enlighten you all. So.

US: America with its First Amendment rights clearly favours the defendant in most libel suits, especially in cases involving public officials and figures. Truth is a complete and unconditional defense, however, if the plaintiff is a public figure, then even if the defendant doesn't have a truth defense, he might still be alright. A public figure plaintiff has to prove negligence or actual malice on the part of the publisher to claim any damages.

In short, you can call George Bush a fool, and the case will be thrown out unless Bush can prove malice or negligence on your part. One could argue that you can easily get off on the truth defense on this one, but proving the truth in an American court of law is no easy task.

A note about fact vs. opinion here: Just because you start the statement with "IMO" doesn't make it an opinion. Most sources claim that this area is gray and very much subject to how the court interprets it.

Britian: If the American laws are defendant-friendly, the British libel laws are very plaintiff-friendly (No surprises why our laws are plaintiff-friendly too, I guess). In fact, the English courts have been accused of being havens for 'libel tourists' by human rights and free speech advocates over the years. The major differences between the US and British laws are:

1. British common law presumes that the the defedant's statements are false unless and until he can prove the contrary2. Unlike the US law, a public figure plaintiff does not have to prove fault on the part of the defendant. This is why public officials and politicians can sue for libel in Britain but not very easily in the United States3. In the US, intent matters. If the publisher believed the content to be true when it was published, that provides an exception even if the statement was false. However in Britain, "under common law a publisher is liable for any false statement of fact, even where the publisher honstly believed the statement to be true at the time of publication and acted in accordance with reasonable standards of journalism"

France: I was curious as to what the French libel laws say as they would have to somehow balance freedom of speech and individuals' reputation unlike the US or Britian where (arguably) one can say, one takes precedence over the other. The French have some rules on who can sue (for instance corporations can sue, however if an employee is the real target, then they cannot), and the defendant can use three kinds of defense - truth, good faith and privelege. Good faith is what makes them closer to the Americans that they would like to be, in fact it takes them one step ahead of the Americans as good faith can include things such as "belief in the truth of the statement, deadline pressures, desire to inform the public, the use of the word "allegedly", or that the statement originated from another source".

Germany: Another country where it is arguable whether truth is a complete defense or not. Defenses inlcude: truth, legitimate public interest, and comment and critical opinion. Apparently, the German courts look favorably on defense please where public interest is at stake. And interestingly, Germany's defamation damage awards are much lower than of the US, and the emphasis is more on corrections and apologies than damages. (Needless to say, Bill claims that being Germans, they possess some precise ways of measuring %s of truth and legitimate public interest and other defenses)

That's it for now. Anyone wants to add to this list around libel laws in other countries including our own, please do so in the comments section. Its quite an interesting subject, no?

People, everyone listen to this: Falsie telling someone that they have too much time on their hands!

Falsie: Yeah, you wait, you anarchist you. When Princess Hark! DaButt sues you, you will see if the laws are relevant or not.

Seriously, agree. But considering that society cares about reputation and damages to reputation and that nations have libel laws, I think its interesting how different countries deal with this when it contradicts with their freedom of expression principle.

I just want to emphasize the good work on this , has excellent views and a clear vision of what you are looking for.Maybe he chokes because he doesn't cry before the match. Now for the French, he should watch snaps of Nadal with the Wimbledon and Australian trophies, have a good bawl, and then go out and play.